There was once a brash power that found it useful – in its efforts to climb up the geopolitical ladder – to encourage and facilitate some of its more enterprising and audacious citizens in taking up arms in ways useful to their government. Ostensibly acting only on their own personal behalf, these citizen-raiders marshaled the most sophisticated technology then available in conducting a long campaign of harassing and sometimes debilitating attacks on their country’s rivals.

Above all, these pseudo-private warriors devoted themselves to attacking a wealthy, status quo power that was felt to stand in the way of their own country’s rise. This target was the geopolitical behemoth of the time, a country with vast wealth and globe-spanning imperial interests and no love for upstart rivals, and which was governed by rulers of a very different ideological stripe than the orthodoxy prevailing in the raiders’ own land. These privateers repeatedly undertook aggressive moves against the extended networks of communication and transport upon which the economy and military strength of this rival state depended.

The larger power complained bitterly to the home government of these fighters, and fought them when it could, at one point even feeling itself provoked into undertaking a major military campaign against the upstart government that had been sponsoring these depredations. But all this was to no avail. The attackers proved too agile and too elusive to be cornered conclusively, even when assaulted on their home turf, while the aggrieved imperial power’s forces proved too ungainly and too vulnerable – despite all their military muscle – to achieve the victory they needed.

As had been intended, the exploits of these raiders played an important role in checking the power of their country’s hated rival and helping push it into a long period of decline. For their exploits in these regards, these fighters – who, incidentally, enriched themselves and their rulers enormously on plundered wealth during the course of their campaigns – were revered in their home country, becoming folk heroes and remembered for their patriotic heroism and spirit of roguish adventure.

All that was nearly half a millennium ago, or so one might hope. The broad contours of their tale, however, might prove worryingly timeless.

I. English Antecedents

Today, English schoolchildren – and, to some lessening extent, Anglophones around the world – remember John Hawkins, Francis Drake, and their compatriots as glorious adventurers who helped blaze England’s path to the top ranks of the great powers and pave the way for the subsequent seapower-based British Empire upon which, for a time at least, the sun never set. Yet this semi-official auxiliary navy of Queen Elizabeth I began as little more than private pirates.

On their own boisterous initiative, for instance, Hawkins and Drake and their ships’ crews got into a scuffle with Spanish vessels in 1567 at Veracruz, a major port in the Gulf of Mexico and a key point of access to Spain’s vast New World dominions. Both men thereafter rose to fame (and considerable fortune) by simultaneously serving as independent pirate marauders and as instruments of the English Crown. Thereafter, as historian Mary Luke has recounted it, “every Spanish ship was fair game for the stout men of Cornwall and Devon, who valued Thucydides’ claim that the ancient Greeks had practiced piracy and ‘the employment carried no disgrace with it, but rather glory and honor.’” The epidemic of raiding that ensued led to fierce protests by the Spanish ambassador, but Elizabeth did nothing to stop it.

The Queen did nothing to stop it because she valued their services. As they challenged the power of Spain around the world by preying upon its shipping, these maritime privateers brought wealth not just to themselves but to England. Elizabeth herself was a major financial shareholder in some of their voyages, and the Crown reaped considerable profits from the association. Perhaps more importantly, Elizabeth prized the role these buccaneers played in humbling and weakening her hated Spanish arch-rivals. (This was more than a mere realpolitik rivalry: Spain and England were emblematic states of the fiercest ideological division of the day, the great schism within Christianity between Catholic and Protestant.) In an era when the Royal Navy was not yet the awe-inspiring force it would become in later years, the Queen regarded these freebooting subjects as de facto naval auxiliaries, and indeed would sometimes send Royal Navy vessels to help patrol the privateers’ sea routes in order to protect the Queen’s financial and strategic investment in them.

The English played a delicate game. Their subjects’ ships engaged in acts against Spain (and to a lesser extent Portugal) that would clearly have been acts of war if directly committed by royal vessels, but they operated under the thin pretense of independence – an early incarnation, perhaps, of what would become known in the 20th Century as “plausible deniability.” They were in some non-trivial sense operating as private citizens, and yet they were also official enough to self-consciously be serving the Crown’s interest and to have the Queen’s blessing and quiet support. If they were captured, it was understood that London would entirely disown them, but the Crown also expected a share of their profits – and of course to benefit from their role in undermining the power of the powerful Iberian sovereigns who then seemed to have the world at their feet.

On occasion, the Queen seems rather ostentatiously to have pretended that the buccaneers operated against her wishes, such as when she officially denied permission for them to undertake a vastly provocative voyage to plunder Cadiz and other locations along the coast of Spain itself – though Elizabeth, rather conveniently, delivered her denial to Portsmouth only after Drake’s privateer flotilla had departed. Few had any illusions that the Crown was up to its bejeweled neck in all this privateering, but the thin pretense of deniability was diplomatically and legally important. When things nonetheless finally came to a head with Spain, and its infuriated king dispatched the notorious Armada to invade England, Drake and many of the other privateering seamen flocked home to win even more renown for themselves in driving the Spanish Armada away from their shores in a famously surprising and ignominious defeat.

II. The Privateering Model

Drake, Hawkins, and their colleagues had a particular verve to them, but privateering was in fact a routine part of warfare for a long time. To this day, Article I, Section 8 of the U.S. Constitution provides for Congress’ authority to issue Letters of Marque and Reprisal – that is, licenses for private citizens to raid their country’s enemies in order to retaliate for, or otherwise redress, some wrong. Though such activity could sometimes lead to war, it was traditionally regarded as a step just short of it.

As a way of harnessing market incentives in support of a national war effort (spoils!), the system was a classically asymmetric approach to conflict. Principally a method of economic warfare through predation of commercial maritime traffic – although nothing, in theory, prevented privateers from attacking the enemy fleet itself, or land targets – privateering was also a potential force-multiplier for a weaker state. It allowed one country to augment its de facto navy on the cheap, with private investors bearing the up-front costs of commerce raiding, while forcing the adversary’s regular naval forces to shoulder the burden of patrolling the sea lanes ... or else face potential commercial strangulation.

During the Napoleonic Wars, British and French privateers preyed on each other’s shipping to great effect, seizing nearly 1,500 vessels between 1803 and 1812. (I think some of my own distant relatives, in fact, were involved in privateering out of Liverpool, Nova Scotia, on behalf of the British Crown, raiding American shipping bound for France.) Such prize seizures, frequently of merchantmen operating out of the young United States, helped lead to the War of 1812, but they began many years before that conflict erupted. Unlike (alas!) piracy, privateering – that is, quasi-official raiding on behalf of a sovereign state – has subsequently fallen quite out of international fashion. Today the exploits of a Drake or a Hawkins might be considered closer to criminal behavior or terrorism than honorable patriotic valor. But we should not forget that their methods were an important state tool in international relations for a long time.

III. Neo-Privateering?

The Golden Era of the privateer was surely in Elizabethan times, when such forces provided an important tool of asymmetric advantage in the contest between a rising England and a powerful Spanish Crown that had not yet entered its long years of decline and imperial retrenchment. But this is perhaps where the basic outlines of the story of the English privateers should give us pause today. We may be seeing the emergence of Drake’s descendants, though now they have rather different surnames and use computer software rather than agile sailing ships and long-range cannonades. I speak of so-called “cyber-privateers.”

To be sure, with respect at least to traditional privateering, the legal environment has changed considerably since those days. As recently as the early 19th Century, there existed a fairly elaborate system of legal regulation for privateering. A privateer had to have formal authorization – hence Article I, Section 8 – and governments ran prize courts in order to adjudicate what spoils could lawfully be kept under this mandate. (This validation function was important, since the whole point for most privateers was the chance of lawful profit offered by maritime seizures. Doing the same thing without government approval meant one was just guilty of piracy.)

Those days, however, have passed. At the close of the Crimean War, the participants in that conflict declared privateering to be “abolished” amongst themselves, enshrining their forswearing of such remedies in the Declaration of Paris in 1856. (Numerous additional governments subsequently signed.) The United States never acceded to the Declaration, but Washington warmed to the idea of preventing naval privateering when the the rebellious Confederate States of America began authorizing their own privateers in 1861. Today, the practice is sometimes said to have become impermissible under customary international law. At any rate, it has long since petered out.

Recent events, however, suggest the potential resurgence of something not entirely unlike privateering – this time not in the maritime realm, but in the murky “waters” of cyberspace. There’s no need to repeat all the stories I mentioned in a past NPF posting on cyber conflict, but recall that during a political dispute with Russia in 2007, anonymous Internet adversaries deluged Estonian computer servers with denial-of-service and other attacks, essentially shutting down the country’s digital infrastructure for a while. After a major U.S.-led investigation, a number of private persons were prosecuted, but an activist with a pro-Kremlin group claimed to have organized the assault entirely on his own initiative. The Russian government, however, refused to cooperate with international efforts to track dow those responsible.

Even more dramatically, when Russia invaded the Republic of Georgia in 2008, unknown persons mounted a comprehensive and costly computer network attack against the Georgian communications systems, logistics centers, and oil and gas pipelines – in ways suspiciously coordinated with more conventional Russian military attacks. According to Western press accounts, this was carried out by various hackers operating out of Russia, Ukraine, Latvia, Turkey, and elsewhere – many of them apparently recruited solely for this campaign – seemingly working hand-in-glove with criminal syndicates who treated the occasion as an opportunity to profiteer. Despite the obvious possibility of Russian government orchestration of this notably convenient campaign, it is not clear that there was any direct involvement by Russian government or military personnel. Other computer assault “surges” – attacks of similarly suspicious coincidence but ambiguous official provenance – have been associated with Chinese anger at Taiwan over talk of declaring formal independence from the mainland, and at Japan over issues of how it officially remembers its ugly wartime history.

Could all these things simply be manifestations of the quirkily uncontrollable nature of the Internet – not coincidences, exactly, but at least things genuinely undertaken on purely private initiative by patriotic national “hacktivists,” lending their disputatious governments, unasked, a little helping hand? Perhaps. Or perhaps not. It is far easier to hide a government’s shadowy hand in cyberspace than it was to hide Francis Drake’s favor at the court of England’s Virgin Queen, or the royal gold invested in his voyages. We may never know, and that may be precisely the point.

IV. The Lawless Cyber Seas

The long-quiescent privateering model may retain salience as a tool of geopolitical advantage, now translated into the technology and virtual terrain of cyberspace.

Computer systems belonging to the U.S. Department of Defense are reportedly probed by unknown potential attackers literally millions of times a day, and from time to time damaging penetrations occur – such as the episode revealed last year in which attackers using Chinese Internet sites broke into a computer network associated with the U.S. F-35 Joint Strike Fighter to steal enormous quantities of data. (Officials also worry about malicious code that might have been left behind, for this can be a powerful tool for remote sabotage, or further industrial or governmental espionage.) Chinese sites were also involved in efforts to break into Defense Department computers in the “Titan Rain” episode of 2005, and in attacks in 2006 that resulted in computers at the U.S. Naval War College being cut off from the Internet for some weeks. Russia, meanwhile, was the origin of a series of attacks on US. computers between 1998 and 2000, in “Moonlight Maze.”

By reputation, Russia-based Internet adventurism is thought to tend to be run by individuals or organized crime, while Chinese activity is sometimes perceived to be – as the polite euphemism puts it – “more organized.” (Translation: people think the government is involved.) For all we know, however, these may be questions of degree rather than kind. Both governments may feel themselves to have much reason to emulate Elizabeth’s successful “outsourced” harassment of the overweening Spanish, and they certainly have ample opportunities to do so with fewer “fingerprints” than she left in her semi-official sponsorship of the great English privateers.

Fascinatingly, in fact, as Timothy Thomas has noted, the Chinese military’s doctrinal writings on cyberwar explicitly invoke the ancient strategic concept of “killing with a borrowed sword” in order to justify the modern cyber technique of using a third party’s computer systems to attack one’s adversary. Some Chinese writings also speak of civilians as being a valuable auxiliary force with which official cyber-warriors can collaborate. (Shades of the Virgin Queen indeed.)

What little is publicly known about the world of modern cyber-crime, moreover, suggests that cyberspace is fertile territory for such activity, and particularly for shadowy public-private partnerships perhaps roughly analogous to the old system of letters of marque. Where once malicious code was thought generally to be the work of hobbyists – e.g., the infamous the “teenager in the basement” of 1990s hacker mythology – cybercrime has reportedly now become quite institutionalized, and has developed sophisticated business models. (Nor is such code only created in the West these days: it has long since gone global, with viruses and worms emerging from various parts of the developing world as well.) Today, a small arsenal of computer-attack tools is said now to be available on a fee-for-service or commercial-off-the-shelf (COTS) basis.

Furthermore, the cast of characters is constantly shifting, with cyber crime said increasingly to follow an opportunistic “swarming” model in which participants come together to collaborate only briefly in exploiting a particular opportunity, and thereafter dispersing. Such a protean and task-specific form of organization is made especially easy because “botnets” of linked, hijacked computers are apparently available for cyber-escapades on a rental basis, and cyber criminals commonly sell or lease their products in thriving online marketplaces. This messy and generally lawless criminal ecosystem arguably provides the perfect environment for a sort of neo-privateering.

Dr. Christopher Ford is Chief Legislative Counsel for the U.S. Senate Foreign Relations Committee. He previously served as Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations.
A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations.
Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628.
The views he expresses here are entirely his own, and do not necessarily reflect those of anyone else in the U.S. Government.

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